IN THE CASE OF:	  

		BOARD DATE:	        12 NOVEMBER 2008

		DOCKET NUMBER:  AR20080009513 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his military records be corrected to show that his rank and pay grade at the time of his discharge on 16 April 1994 was sergeant first class (SFC)/E-7 and not sergeant (SGT)/E-5.

2.  The applicant essentially states that he has enclosed documents which verify that he was an SFC/E-7.

3.  The applicant provides orders, dated 12 April 1985, which promoted him from SGT/E-5 to staff sergeant (SSG)/E-6 with a date of rank and effective date of 
12 April 1985; a portion of a DA Form 2A (USAR) (Personnel Qualification Record [Enlisted]), dated 11 February 1989; a portion of a DA Form 2A (USAR), dated 
10 February 1990; one page of his four-page DA Form 2-1 (Personnel Qualification Record – Part II); a DD Form 368 (Request for Discharge or Clearance from Reserve Component), which was approved on 16 April 1991; a Request for Correction of Chronological Statement of Retirement Points for United States Army Reserve (USAR) Troop Program Members, dated 7 March 1989; and a letter, dated 27 May 2008, from a Member of Congress from Ohio to the applicant in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military 
Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The majority of the applicant’s military records are not available for review.  However, there are sufficient remaining documents available to conduct a fair and impartial review of this case.

3.  The applicant requested that his military records be corrected to show that his rank and pay grade at the time of his discharge on 16 April 1994 was SFC/E-7, not SGT/E-5.  He provided orders, dated 12 April 1985, which promoted him from SGT/E-5 to SSG/E-6 with a date of rank and effective date of 12 April 1985.  He also provided a DA Form 2A (USAR), dated 11 February 1989, which showed that his rank and pay grade at the time was SSG/E-6 with a date of rank of 12 April 1985. Additionally, he provided a Request for Correction of Chronological Statement of Retirement Points for USAR Troop Program Members, dated 7 March 1989, which essentially showed that his current pay grade at the time was E-7. 

4.  The applicant's military records contained a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) which shows that he was separated from the Ohio Army National Guard on 16 April 1994.  Items 5a (Rank) and 5b (Pay Grade) of this document show that his rank and pay grade at the time of his separation on 16 April 1994 was SGT/E-5.  It was noted that item 6 (Date of Rank) of this document showed that his date of rank for SGT/E-5 was 14 November 1982.  It was also noted that the applicant was not available to sign this document.  Additionally, it was noted that item 18 (Remarks) of this document shows that the applicant had a bar to reenlistment in effect at the time of his discharge.

5.  There is no evidence in the available records which conclusively shows that the applicant was promoted to SFC/E-7 at any time during his military service, or that he was an SFC/E-7 at the time of his discharge on 16 April 1994.

6.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show that his rank and pay grade at the time of his discharge on 16 April 1994 was SFC/E-7 and not SGT/E-5.

2.  While there is conflicting information in the available records surrounding the applicant's rank at the time of his discharge on 16 April 1994, there is no evidence in the available records, and the applicant failed to provide any conclusive evidence, such as promotion orders promoting him to SFC/E-7 or leave and earnings statements, which show that he was being paid as a SFC/E-7 prior to and at the time of his discharge on 16 April 1994.  

3.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  In view of the foregoing, there is insufficient basis for granting relief to the applicant in this case.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______XXX_______________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20080009513



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ABCMR Record of Proceedings (cont)                                         AR20080009513



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